Citation Nr: 1008601
Decision Date: 03/08/10 Archive Date: 03/17/10
DOCKET NO. 08-35 633 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for posttraumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: Texas Veterans Commission
ATTORNEY FOR THE BOARD
Sara Schinnerer, Associate Counsel
INTRODUCTION
The Veteran had active service from June 1968 to May 1970.
This matter comes before the Board of Veterans' Appeals (BVA
or Board) from an October 2007 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO) in
Waco, Texas.
FINDING OF FACT
The Veteran did not engage in combat during service and there
is no corroboration or verification of the occurrence of the
Veteran's claimed stressors.
CONCLUSION OF LAW
The criteria for entitlement to service connection for PTSD
have not been met.
38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.102, 3.303,
3.304(f), 3.306, 3.159, 4.125(a) (2009).
REASONS AND BASES FOR FINDING AND CONCLUSION
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159;
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). The notice should also address
the rating criteria or effective date provisions that are
pertinent to the appellant's claim. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
The RO provided the Veteran complete pre-adjudication notice
by letter dated in September 2006.
The RO also provided assistance to the Veteran as required
under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c), as
indicated under the facts and circumstances in this case. As
for the duty to assist, the Board finds that all necessary
assistance has been provided to the Veteran, whereas VA has
obtained service treatment records, VA outpatient treatment
records, private treatment records, multiple statements from
the Veteran, and assisted the Veteran in obtaining evidence.
The Board acknowledges that the Veteran has not been afforded
a VA examination in connection with his claim for service
connection for PTSD; however such an examination is
unnecessary to make a decision in this case. There is no
evidence that verifies or corroborates the occurrence of an
in-service stressor. Service connection for PTSD cannot be
granted in the absence of an in-service stressor and an
after-the-fact medical opinion cannot serve as the basis for
corroboration of an in- service stressor. See Moreau v.
Brown, 9 Vet. App. 389 (1996); 38 C.F.R. § 3.159(c)(4);
McLendon v. Nicholson, 20 Vet. App. 79 (2006).
VA has substantially complied with the notice and assistance
requirements and the Veteran is not prejudiced by a decision
on the claim at this time.
Discussion
The Veteran contends that his PTSD is related to active
service.
Applicable law provides that service connection will be
granted if it is shown that the veteran suffers from
disability resulting from injury suffered or disease
contracted in line of duty, or for aggravation of a pre-
existing injury suffered or disease contracted in the line of
duty, in the active military, naval or air service.
38 U.S.C.A. §§ 1110; 38 C.F.R. §§ 3.303, 3.304, 3.306.
Service connection may also be granted for any disease
diagnosed after discharge, when all the evidence, including
that pertinent to service, establishes that the disease was
incurred in service. 38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R.
§ 4.125(a), a link, established by medical evidence, between
current symptoms and an in-service stressor; and credible
supporting evidence that the claimed in-service stressor
occurred. If the evidence establishes that the veteran
engaged in combat with the enemy and the claimed stressor is
related to that combat, in the absence of clear and
convincing evidence to the contrary, and provided that the
claimed stressor is consistent with the circumstances,
conditions, or hardships of the veteran's service, the
veteran's lay testimony alone may establish the occurrence of
the claimed in-service stressor. See 38 C.F.R. § 3.304(f).
The provisions of 38 C.F.R. § 4.125(a) require that a
diagnosis of a mental disorder conform to the Diagnostic and
Statistical Manual, Fourth Edition (DSM-IV).
A May 2006 VA outpatient treatment record reflects a
diagnosis of PTSD. The Veteran's reported stressful
experiences were described in this treatment report to
include incidents that occurred on the USS Vesuvius, which
was an ammunition ship. The Veteran worked in the laundry
and assisted "on the phones," where he was tasked with
monitoring for problems regarding the unloading of ammunition
to other ships. The Veteran reports the following incidents
on the USS Vesuvius: He indicated that he jumped out of the
way of a broken cable line; he saw a sailor crushed by a
pallet of ammunition during rough seas; and a fire occurred
where the ammunition was stored.
An October 2008 private treatment record from K.D., Ph.D.
also provides a diagnosis of PTSD. The Veteran reported
identical aforementioned stressors, as detailed in the May
2006 VA outpatient treatment record, as well as encountering
a Russian submarine off the coast of Vietnam, when he recalls
feeling fear when the helicopter gunship flashed its lights
in the water.
There is a diagnosis of PTSD, and thus the central issue in
this case is whether there is credible supporting evidence
that an in-service stressor actually occurred which supports
the diagnosis.
The Veteran's service personnel records do not reflect that
he had combat duty. Thus, his assertions alone are not
sufficient to establish the occurrence of the claimed
stressors, and his testimony must be corroborated by credible
supporting evidence. Cohen v. Brown, 10 Vet. App. 128
(1997); Moreau, 9 Vet. App. at 389 (1996); Dizoglio v. Brown,
9 Vet. App. 163 (1996).
In October 2006, following the May 2006 VA outpatient
treatment in which he received a diagnosis of PTSD, the
Veteran completed a PTSD questionnaire, in which he
elaborated on some of the various stressors that he
experienced in service and reported during the outpatient
treatment. Regarding the broken cable line, the Veteran
indicated while "giving ammo," the boom bent on the ship
and the cable snapped, requiring the Veteran to jump out of
the way. Regarding the incident where the Veteran saw a
sailor crushed by a pallet of ammunition during rough seas,
the Veteran indicated that there was a lot of blood.
Subsequently, the Veteran submitted a personal statement in
December 2006. Regarding the claimed stressor of
encountering a Russian submarine, the Veteran further
elaborated that he believes that this incident occurred in
1968.
In an October 2007 memorandum, the RO made a formal finding
on a lack of information required to verify stressors in
connection with the Veteran's PTSD claim. Specifically, the
RO determined that the information required to verify
stressful events described by the Veteran is not sufficient
to research the case for a Navy record. The RO noted that
the Veteran's service treatment records are negative for
treatment or a diagnosis of PTSD and his service personnel
records and Form DD 214 are negative of an award of
individual combat medals necessary to concede a stressor.
The RO made the following efforts in order to obtain the
information necessary to verify stressful events: A
September 2006 letter was sent to the Veteran requesting
specific details of the combat related incidents that have
resulted in his claim of PTSD. The Veteran responded to the
letter with a Form 21-0781, which was received by the RO in
October 2006. In the form, the Veteran reported stressors of
an encounter with a Russian submarine; stress from
transferring ammunition during rough seas; witnessing a
pallet crush a fellow sailor; stress from water rushing on a
ship during rough seas; stress from a machine gun pointed at
his ship at an unknown foreign port; stress from other ships
outgoing radar; stress from working at night; and stress from
almost hitting another ship. The Veteran did not report
specifics as to time, place, or people involved. The RO sent
a follow-up development letter in November 2006, requesting
additional details of the incidents that resulted in the
Veteran's claim of PTSD. The Veteran responded by statement
received in December 2006, in which he repeated the stressors
indicated in the aforementioned October 2006 PTSD stressor
statement. The Veteran did not indicate specifics as to
time, place, or people involved. The RO determined that the
Veteran did not provide the required stressor information.
In a September 2008 statement, the Veteran's former spouse
indicated that upon return from Vietnam, the Veteran
explained what an ammunition ship was, the ship's role in the
war, and what his role was while serving on the ship. The
Veteran's former spouse indicated that the Veteran briefly
told her about some of the accidents that took place upon the
ship relating to off-loading bombs and other weapons, as well
as the dangerous waters, however, the Veteran did not
elaborate about the accidents.
The Board finds that the Veteran did not have combat duty and
his alleged in-service stressors consist of anecdotal
incidents rather than verifiable incidents; the alleged
incidents have not been corroborated by official records,
buddy statements, or any other supportive evidence. He has
not produced any witness who can corroborate his testimony.
He has not provided sufficient information with which the RO
could verify an in-service stressor.
In the absence of a verified stressor of record, there is no
basis upon which to find that claimed PTSD has a causal
relationship to any incident of the Veteran's service. Thus,
the regulatory criteria for a claim for service connection
for PTSD are not met, and the claim is denied. As the
preponderance of the evidence is against this claim, the
benefit-of-the-doubt doctrine does not apply, and the claim
for service connection for PTSD must be denied. 38 U.S.C.A.
§ 5107(b).
ORDER
Service connection for PTSD is denied.
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs